Valparaiso University Law Review Volume 28 Number 4 First Women: The Contribution of pp.1415-1464 American Women to the Law First Women: The Contribution of American Women to the Law A Failed Statute, Geoffrey Feiger, and the Phrenetic Physician: Physician-Assisted Suicide in Michigan and a Patient-Oriented Alternative Michael J. Roth Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Michael J. Roth, A Failed Statute, Geoffrey Feiger, and the Phrenetic Physician: Physician-Assisted Suicide in Michigan and a Patient-Oriented Alternative, 28 Val. U. L. Rev. 1415 (1994). Available at: https://scholar.valpo.edu/vulr/vol28/iss4/9 This Notes is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Roth: A Failed Statute, Geoffrey Feiger, and the Phrenetic Physician: P A FAILED STATUTE, GEOFFREY FEIGER, AND THE PHRENETIC PHYSICIAN: PHYSICIAN- ASSISTED SUICIDE IN MICIUGAN AND A PATIENT-ORIENTED ALTERNATIVE I. INTRODUCTION Since 1988, twenty-one reported instances of suicide conducted with the participation of a physician have occurred in the State of Michigan.' Prior to these instances, sources document only nine physicians facing murder charges for assisting in a patient's suicide in the United States.' Ironically, the increase in reported physician-assisted suicide cases is at least partially a result of improvements in medical technology.' Often, these technological improvements serve to prolong life without regard for improving the quality of life.4 As such, technology has pushed many patients' lives beyond the traditional threshold of death, but no medical procedure exists to make that prolonged life free of pain. In response to the drastic increase in reported physician-assisted suicide cases, the Michigan legislature passed a law, effective February 25, 1993,' that 1. The number of suicides is current as of May 14, 1994. See infra notes 110-23 and accompanying text. 2. Juries Kind to Doctors Who Assist, CAPITAL TIMES, Mar. 17, 1992, at DI. Hemlock Society statistics reveal only ten reported instances of assisted suicide between 1980-1991, half of which occurred in 1991. See Cheryl K. Smith, What About Legalized Assisted Suicide?, 8 ISSUES L. & MED. 503, 508 (1993). 3. "Two decades ago, those who were not and could not swallow and digest food, died .... Today, various forms of artificial feeding have been developed that are able to keep people metabolically alive for years, even decades." Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 328 (1990) (Brennan, J., dissenting). Justice Brennan is not alone in this observation. A recent article in the Journal of the American MedicalAssociation recognized "that the dying process is too often needlessly protracted by medical technology and is consequently marked by incapacitation, intolerable pain, and indignity." American Medical Association Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229, 2229 (1992). 4. "Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues." Cruzan, 497 U.S. at 301 (quoting Rasmussen v. Fleming, 741 P.2d 674, 678 (Ariz. 1987)) (Brennan, J., dissenting). 5. Michigan's assisted suicide law was to become effective on April 1, 1993. However, because of a marked increase in the reports of physician-assisted suicides, the Michigan legislature voted to make the law effective at an earlier date. Carol J. Castaneda, Two States Target Kevorkian, USA TODAY, Feb. 24, 1993, at A3. The pertinent provisions of the statute are: (1) A person who has knowledge that another person intends to commit or attempt to commit suicide and who intentionally does either of the following is guilty of criminal assistance to suicide, a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both: 1415 Produced by The Berkeley Electronic Press, 1994 Valparaiso University Law Review, Vol. 28, No. 4 [1994], Art. 9 1416 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 28 (a) Provides the physical means by which the other person attempts or commits suicide.. (b) Participates in a physical act by which the other person attempts or commits suicide. (2) Subsection (1) shall neither be applicable to nor be deemed to affect any other laws that may be applicable to withholding or withdrawing medical treatment by a licensed health care professional. (3) A licensed health care professional who administers, prescribes, or dispenses medications or procedures to relieve a person's pain or discomfort, even if the medication or procedure may hasten or increase the risk of death, is not guilty of assistance to suicide under this section unless the medications or procedures are knowingly and intentionally administered, prescribed, or dispensed to cause death. MICH. COMe. LAws § 752.1027 (1)-(3) (1993). It is essential to note that the statute is only temporary in nature. MICH. COMe. LAWS § 752.1027 (4) provides that the legislature shall repeal the statute six months after the Michigan Commission on Death and Dying, established in the companion statute MICH. COMP. LAWS § 752.1021, makes its recommendation as to what the permanent status of physician-assisted suicide should be in Michigan. At the time of publication, it was unclear what the Commission's recommendation would be. It was clear, however, that attempting to predict the permanent legal status of physician-assisted suicide was a fruitless effort. The panel was sharply divided as some members favored keeping the statute intact while the remaining members believed the Michigan Constitution provided individuals with an absolute right to receive aid in dying. See, e.g., Panel Divided on Keeping Ban onAssisted Suicides, ORLANDO SENTINEL, Dec. 22, 1993, at A14; Panelists Urge Lifting Ban on Suicide, CHI. TRIB., Dec. 22, 1993, at A3. In a similar vein, the Michigan Court of Appeals and Dr. Jack Kevorkian were also seeking to resolve the issue. After the statute's enactment, the State of Michigan filed four charges against Dr. Jack Kevorkian for assisting suicides. Three of the charges were dismissed before trial because the trial court judges believed the statute was unconstitutional. Judge Orders Kevoridan to be Tried in Assisted Suicide, L.A. TIMES, Feb. 19, 1994, at Al; David Lawder, Judge Strikes Down Suicide Law, Charges Against Kevorkian, REUTERS, Jan. 27, 1994, available in LEXIS, News Library, CURNWS File. The State of Michigan appealed these pretrial judgments and the Michigan Supreme Court ordered immediate consideration by an appellate court. State v. Kevorkian, No. SC-98364, 1993 Mich. LEXIS 2986, at *1 (Mich. Dec. 21, 1993). Although no decision has yet been rendered, the appellate court hearing the case has but two options. The court can either uphold the law or strike it down as unconstitutional. While the Michigan Court of Appeals was considering the rulings of the three district court judges who found the statute unconstitutional, a fourth district court actually held a trial against Dr. Kevorkian. At the time of publication, the attorneys were conducting voir dire. Even though the outcome could not be predicted, there is little doubt that the situation was rife with conflict. Dr. Kevorkian faced the dilemma of being convicted by a jury only to have the appellate court, in a separate action, find the law under which he was prosecuted unconstitutional. Dr. Jack Kevorkian, often portrayed in the media as a jovial grim reaper, has also offered his hand in "resolving" the issue. After being released from jail in December of 1993, Dr. Kevorkian announced that he and his attorney, Geoffrey Feiger, began a campaign to put a referendum on the November, 1993 ballot that would guarantee an absolute right to physician-assisted suicide within Michigan's boundaries. Kevorkian Begins Ballot Drivefor Suicide Measure, N.Y. TiMES, Jan. 31, 1994, at A13. If successful, Michigan's Constitution would be amended to read, "The right of competent adults, who are incapacitated by incurable medical conditions, to voluntarily request and receive medical assistance with respect to whether or not their lives continue, shall not be restrained or abridged." Id. Although public opinion polls suggest that most people in Michigan support such a right, see infra notes 261-62, it is nevertheless quite unclear whether such a referendum would succeed. Both California and Washington considered similar referendums that failed even though https://scholar.valpo.edu/vulr/vol28/iss4/9 Roth: A Failed Statute, Geoffrey Feiger, and the Phrenetic Physician: P 1994] PHYSICIAN-ASSISTED SUICIDE 1417 prohibits anyone, including a physician, from either causing6 or assisting7 in the suicide of a patient. In passing such a law, the Michigan legislature gave great deference to the state's interest in preserving the lives of its citizens.8 However, in so doing, the legislature ignored the plight of individuals whose lives have been prolonged because of medical advances, yet whose quality of life has not improved.9 Physician-assisted suicide is a highly divisive topic. Many patients who face suffering that no medical procedure can alleviate are strongly in favor of exercising their right to self-determination through assisted suicide."0 Even the public opinion polls in those states suggested that the referendums should have passed. See infra notes 262-63. Although there are three separate channels of activity attempting to resolve this divisive issue, none appear to be on course. The Michigan Commission on Death and Dying appears to be considering only two diametrically opposed alternatives: keeping the present statute intact, which provides a blanket prohibition on physician-assisted suicide, or recognizing an absolute right, free of governmental regulation, to receive aid in dying.